The concept of a “Marriage of convenience” can be a real scourge in the hands of the Home Office when it comes to partners of EU nationals who obtained an immigration advantage through marriage.
Outside immigration jargon, a marriage of convenience would mean something of a sham, like a marriage on papers, or, perhaps in a somewhat anachronistic context, a union where practical considerations prevail over less tangible bonds.
Immigration lawyers, or course, have their own definitions both in UK spouse visa and EU settlement scheme contexts. EEA regulations define it as a marriage entered into for the purpose of relying on EU rights and as a means to circumvent the immigration rules applicable to non-EEA nationals. Since Brexit, the Regulations had to be incorporated into the immigration rules and the definition had to be adapted. It came out a bit garbled as “a marriage entered into to circumvent any criterion the party would have to meet in order to enjoy the right” etc etc. Well, meeting a requirement and circumventing a requirement is not quite the same thing either in common parlance or legally, but we know what they had in mind.
Any marriage entered for the purpose of obtaining an immigration advantage is open to accusations of marriage of convenience. To defy it may be a challenge even to most affectionate couples, not least because proving the negative is always a bit of a trick.
The definition does not make reference to genuineness of the relationship – as in Appendix FM in the context of spouse visa requirements, or in other parts of the immigration rules. If genuineness of the relationship does not come into equation, the criteria for assessing the purpose of getting married become … well, uncertain.
Our clients came to us after a long and traumatic journey through immigration tribunals when their case was dismissed by the Upper Tribunal. Normally, dismissal of the appeal in the Upper Tribunal means the end of the matter. So we were not exceedingly optimistic about the prospects of success. Still, we had to take chances. Had the decision been left unchallenged both our clients could be deported without any prospect of returning to the UK. So we proceeded to appeal the tribunal decision.
The bitter comedy of the 21st century immigration law is that proving (or disproving) one’s motives is not much different from proving (or disproving) the use of sorcery or spell-casters for romantic attraction. With all uncertainty and imprecision of the law, the main legal battle was about who bears the burden of proof.
Following the prescribed procedure, we asked the Upper Tribunal to review their own decision and either set it aside or give us permission to appeal further. It was the turning point in what seemed to be a string of bad luck, when the Upper Tribunal generously agreed that their own decision had been unfair and set it aside. Then, they reviewed again the decision of the First-tier tribunal and found it wrong.
The case was accordingly remitted to another First-tier immigration tribunal. Then Covid struck and the hearing was adjourned. Instead of a full hearing, a Case Management Review had to be held by a video link. We insisted that our clients should be given a chance to appear before a judge in person, not on papers and not via a video link.
Over a year after the success in the Upper Tribunal, the case was finally heard in Nottingham where our clients gave evidence live. The judgment was given on the day and they won the appeal!
We are over the moon with this success story. After over two years of legal battles they can enjoy their family life and not worry about an immigration officer knocking on the door and asking for proof of romance.
As legal representatives, we celebrate the outcome. And yet, we encourage clients and friends of clients to come to us before applying for a visa and before getting refused. We could have saved years of litigation by making their application in a different way.